The sofa was still burning when firefighters burst into the house. Upstairs, flames that had consumed the bed were already out. Ebb "Doc" Whitley was no longer breathing.
Evidence included burn patterns on the first and second floor of Whitley’s house and chemicals found in the charred remains after the fire. The prosecutor also cited the defendant’s history of fighting, and a witness who claimed that Lively’s mother, a nurse who worked with Whitley for 25 years, had vowed to kill the doctor during an explosive argument the night before the fire.
A jury found Lively, then 29, guilty of first-degree murder.
But the fire-related evidence proved faulty, based on outdated science and what the state's own experts eventually concluded was a fundamentally flawed investigation. For years after the errors were discovered, Lively remained behind bars, because of a lackluster defense, delays and legal missteps.
Advocates say his case illustrates a devastatingly common miscarriage of justice, especially in poor, rural swaths of the country, where defense attorneys are frequently underfunded and fire investigators often lack education and advanced training.
In West Virginia, in the same prison in which Lively would spend nearly 15 years, there is another inmate whose sentence is based on a similarly problematic fire investigation, according to his lawyers. A Virginia man is fighting to prove his innocence in a different deadly blaze, aided by Lively’s most recent legal team. And in Texas, a man was executed in 2004 despite evidence he did not set the fire that killed his three children.
The Texas case helped begin the slow unraveling of Lively’s conviction, a process that culminated this fall in a West Virginia courtroom, when he and his family gathered to hear a judge decide, once and for all, his fate.
The facts of the case
The work of figuring out how fires start in America can be done by fire marshals, police officers or other first responders, depending on the size of the blaze and where it occurs.
There are no national proficiency tests or education requirements for such positions.
It was deputy state fire marshal Robert Bailey who arrived in tiny, close-knit Iaeger (population 305) on that March morning in 2005 to investigate the fire at Whitley’s house. Bailey had a high school education and had been with the office for about 10 months. He had attended some fire investigation classes taught by the state fire marshal; before Lively’s trial, he would complete a two-week training at the National Fire Academy.
In the living room, Bailey found the fire had burned the couch, a coffee table and the fireplace mantle. In the bedroom, flames had eaten through the thick wooden floor joists and the subfloor, damaging the bed, a table and the ceiling.
Based on what he saw, Bailey concluded that two fires had been deliberately set. The fire upstairs, he determined, was started using a liquid accelerant that contained toluene, a component that was found in one of 12 samples he collected. He said he believed the fire downstairs was set with an open flame to the sofa.
He and other investigators explained their findings to Sid Bell, the elected prosecutor in McDowell County since 1993, who soon named Lively as the lead suspect.
Bell had moved to the county in the 1970s to work as a reporter at a newspaper and stayed after graduating law school. He had prosecuted Lively in other cases, most related to fighting. Even today, he describes Lively as “no angel.” It’s a characterization Lively doesn’t dispute.
Smart, charming and athletic, Lively never cared much for school. He worked in the coal mines and struggled after his father, a small-time drug dealer, died in a car accident. After a leg injury in high school, Lively started using drugs himself.
At his trial, Bailey outlined how he thought the fire started. The local bank president described Whitley’s fight with Lively’s mother. A pawnshop employee said Lively sold Whitley’s computer the day the doctor died.
Two witnesses placed Lively and his friend and co-defendant, Tommy Owens, at Whitley’s house on the morning of the fire. But Lively said he arrived only after Whitley died and in fact ran into the house in a futile attempt to save him.
Lively’s lawyer, chief public defender Floyd Anderson, called an insurance company employee who testified that the fire’s cause was undetermined. But Anderson did not call an outside fire expert to rebut Bailey’s conclusion that the fire was “willful and malicious in nature, set in order to burn the structure.”
Instead he argued that Whitley and Lively’s mother had been so close that neither she nor her son would ever hurt the doctor.
Anderson questioned the credibility of one witness, a jailhouse informant, and noted that another recanted on the stand, saying he’d been coerced by police.
Two months after Lively’s conviction, it was Owens’s turn to face a jury. They deliberated just 28 minutes before acquitting him of any role in the fatal fire.
A key reason appears to have been contradictory testimony by Bailey and another fire investigator. As he had in Lively’s trial, Bailey suggested the two fires were separately set. The other fire marshal, however, said there was just one blaze.
Bell, who prosecuted both cases, says he still believed Lively was guilty, based on the other evidence presented at trial. But he found himself wondering about Bailey’s conclusions.
His doubts grew larger three years later, after he read a New Yorker article about Todd Willingham, an unemployed auto mechanic from Texas who was sentenced to death after being accused of starting a fire that killed his three young daughters in 1991.
Investigators wrongly said puddle-shaped char patterns on the floor and spider-web-like patterns on the windows showed the fire burned “fast and hot” and thus must have been set by an accelerant.
The article detailed how a friend of Willingham, convinced of his innocence, asked acclaimed fire investigator Gerald Hurst to review the evidence.
Hurst, a chemist trained at Cambridge University in England, said there was little doubt the fire was accidental, probably caused by a space heater or faulty electrical wire. Accelerants don’t make fires burn hotter, he wrote, and the theory about patterns on the glass indicating an accelerant is nothing more than an “old wives’ tale.”
The Texas governor’s office and the Board of Pardons and Paroles received Hurst’s report, which said an innocent man was about to be put to death based on “junk science.” But it is not clear whether they read it.
Willingham was executed on Feb. 17, 2004, in Huntsville, Tex. He was 36.
After his execution, Texas became one of a handful of states to create an independent agency to investigate forensic cases in which misconduct is alleged. That group found in 2010 that Willingham had been executed following a flawed investigation and “despite there being no reliable evidence of his guilt.”
Willingham has never been officially exonerated, and the prosecutor in his case stands by the conviction.
A few years after the New Yorker article published, Lively filed a habeas corpus petition asking West Virginia to review the evidence in his case.
Bell, at this point serving his fifth and final term as prosecutor, made an unusual request: funding to hire an outside expert after a conviction. He hoped Craig Beyler, a Harvard-trained fire expert who reviewed the Willingham case for the commission in Texas, would confirm Bailey’s finding in Whitley’s death and put Bell’s conscience at ease.
That’s not what happened.
Beyler concluded that the fire in Whitley’s house was not set intentionally and was electrical in origin, starting below the subfloor.
The upstairs blaze would have taken hours to burn through the wooden floor joists, he said. The sofa fire, on the other hand had been burning for mere minutes, probably sparked by an ember from the fire upstairs.
If it was arson, Beyler reasoned, Lively and Owens would have had to wait in the house as it filled with smoke from the upstairs fire, then ignite the sofa on their way out.
Further dismantling Bailey’s theory, Beyler found, was that the hole in the hardwood floor was smaller than the hole in the subfloor. That meant the second-floor blaze could not have been set with an accelerant from above.
Bell turned the report over to Lively’s defense lawyers, as prosecutors are required to do, labeling parts of it “clearly exculpatory.”
Beyler says he assumed the longtime prisoner would be exonerated.
Mistakes and delays
The habeas hearing, on Feb. 20, 2013, was an opportunity for Lively’s lawyers to introduce new evidence to prove his innocence. Many prisoners never get that chance.
Consider the case of Samuel Anstey, jailed since 1995 in Mount Olive Correctional Facility, the same place Lively was held, after being convicted of rigging a toaster to ignite a fire that killed his grandmother.
Anstey maintained he was innocent. His case drew the attention of the West Virginia Innocence Project, part of a national network of legal clinics that aims to free wrongfully convicted people. The group asked Hurst, the Cambridge-trained scientist, to get involved.
He determined that investigators did not meet national guidelines for arson probes set in the early 1990s, and that the volunteer firefighter who launched the investigation tampered with the evidence — moving the toaster from its original location, moving its plunger up and down and turning off the electrical breakers.
The cause of the fire, Hurst wrote, could not be determined.
But West Virginia’s highest court denied Anstey’s request for a hearing, ruling that because the state had never adopted the national fire-investigation guidelines, the question of whether this probe met those standards was irrelevant.
Anstey, now 61, remains in prison, without much hope of getting out, barring a commutation of his sentence from the governor.
“I had hope, but I’ve pretty much lost it,” he said in a recent interview. “I said it’s in God’s hands. But I’ve been wavering with that.”
Lively, too, grew despondent as the years passed. Because of repeated clashes with correctional officers, he spent more than 10 years in solitary confinement.
“It seems like I’m nothing but a memory that is fading more and more with each passing day,” he wrote in his journal.
The 2013 hearing was one of his last chances to prove his innocence.
But when Lively’s new lawyer, Scott Driver, called Bell to testify, the prosecutor mischaracterized the report from Beyler.
Bell says he did not know he would be asked to discuss Beyler’s report and had not reviewed it; he assumed Driver would call Beyler as a witness. On the stand, he incorrectly said Beyler had ruled that the cause of the blaze was undetermined.
Driver did not correct the prosecutor or address the substance of Beyler’s findings. To this day, he said in an interview, he cannot explain why he failed to question Bell more thoroughly or delve more deeply into Beyler’s report.
“I think it is safe to say that at pretty much every level of the justice system, somebody failed him,” Driver said of Lively. “It’s weighed pretty heavy on me, to the extent I contributed to that.”
The judge denied Lively’s petition. A similar request he had submitted in federal court stalled.
Increasingly desperate, Driver, too, contacted the West Virginia Innocence Project.
A final push
Andrew George, a white-collar litigator at Baker Botts in Washington who does pro bono wrongful conviction work, was skeptical at first. Then he read Beyler’s report and the transcript of the habeas hearing. His associate called Beyler, who was livid to learn Lively was still in prison.
George agreed to represent Lively and went with Beyler and a small team of attorneys to meet with lawyers in the West Virginia attorney general’s office in July 2018. The prosecutors agreed to hire chemist Glen Jackson, a professor of forensic science at West Virginia University, to review the case.
Then George called Bell, the former prosecutor, who surprised him by being willing to meet.
George and Beyler worried the encounter would be awkward. But as they sat in a conference room at a cultural center in Beckley, W.Va., that November, George said, they realized Bell was “was an honest player who made an honest mistake and wanted to own up to it.”
Bell soon signed an affidavit admitting his error at the habeas hearing. “My testimony about Dr. Beyler’s report and findings was inaccurate,” he swore. “Thus, I strongly believe, therefore, that Charles Jason Lively is innocent.”
At this point, Lively had an unlikely trio of defenders: Beyler, the scientist; Bell, the former prosecutor; and a high-powered legal team.
Lawyers and staff from Baker Botts and the West Virginia Innocence Project spoke almost every day to Lively, and nearly as often with Lively’s mother and his fiancee, Billie Blankenship, who had known Lively since high school.
Blankenship had started writing him in prison after watching “Sins and Secrets,” the Investigation Discovery documentary about his case that aired in 2012.
They planned to marry if Lively was freed.
Jackson, the WVU chemist, soon backed Beyler’s conclusion that the fire was not deliberately set. But Bailey, the fire marshal, who had left the office in 2011, remained unconvinced. After all, he told George, neither Beyler nor Jackson had been to Whitley’s house.
So Beyler and George returned to West Virginia once more. They met fire marshals at Whitley’s house, now filled with weeds and trash. The marshals sent Jackson samples from the house, which provided the final blow to the state’s original case.
Neither charcoal lighter fluid nor gasoline contain toluene as a single component, Jackson wrote. Rather than being poured to aid the fire, as Bell originally suggested, toluene was more likely to have originated through a chemical reaction after the fire started, Jackson said.
'To no one will we deny justice'
Lively’s loved ones gathered outside the Mercer County courthouse in bright sunshine on Sept. 23, passing around “Justice for Jason” T-shirts.
George had convinced Emily Miller, the new McDowell County prosecutor, to support a motion to vacate Lively’s conviction, so long as he pleaded guilty to two misdemeanors related to trespassing at Whitley’s house and selling the doctor’s computer.
The prosecutor was motivated in part by a scathing letter from Bell, who wrote in July that she should free Lively immediately. “We have had knowledge of this compelling exculpatory evidence for two years,” he wrote. “Further delay would be immoral and unethical.”
Miller said in a brief interview that she acted as quickly as she could. She did not respond to further questions.
As Blankenship waited in the wood-paneled courtroom, she shook her head in disbelief at the words inscribed on the wall: “To no one will we deny justice, to no one will we delay it.”
Minutes later, Lively, now 42, entered, his head shaved and his hands cuffed in front of him, a correctional officer to either side. He winked at Blankenship and his mother as he made his way to sit next to George, whom he was meeting in person for the first time.
Judge William Sadler walked through the facts of the case. Knowing what the state had concluded about the fire investigation, he said, a jury would not have believed arson to be the cause of the fire and thus would not have believed Lively was guilty.
His voice muffled by a mask, the judge declared the conviction vacated. Lively has been added to the national registry of exonerations, George said, though it is not clear whether he will receive any compensation from West Virginia.
In the courtroom, Blankenship and Kathy Lively-Hamilton clasped hands and raised them above their heads in celebration.
After years of delay, it seemed to them like everything that happened next was in fast-forward: The bailiff undid Lively’s handcuffs. Lively signed the plea. He hugged his mother, then Blankenship.
“You did it,” she told him.
“We did it,” he replied.
For the first time in nearly 15 years, Lively changed into street clothes.
“This is my man,” he said, clasping George’s shoulder as he introduced him to uncles, cousins and friends outside the courthouse. “Thank you.”
Everything, he said, felt like a dream. The first thing he wanted to do was eat a steak at his mother’s house. Then get out of West Virginia, marry Blankenship and begin a new life.
But first, he had a question for his lawyer. “When,” he asked George, “are you going to help the next one?”